Anthony Isibor Vs The State (2002)

LAWGLOBAL HUB Lead Judgment Report

O. UWAIFO, J.S.C.

On 29 November, 2001 when this appeal came on for hearing, I dismissed it having earlier perused the record and the briefs of argument filed in addition to hearing the oral submissions of both counsel that day. I then reserved the reasons for my judgment till today.

The appellant was charged with armed robbery contrary to and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree (now Act) No. 47 of 1970 as amended by the Robbery and Firearms (Special Provisions) (Amendment) Decree (Act) No.8 of 1974. The particulars of the offence were stated to be that on or about the 5th day of April, 1980 along Old Ife Road by the Express Way Ibadan, the appellant armed with firearms, and in the company of other persons unknown, robbed one Alhaji Y.A.Afolabi of his peugeot 504 car with registration No. OYB 2118 A valued at about N9,000.00 and a lady’s bag containing N600.00. Without going into much details of the facts, the evidence which was accepted by the two courts below, in summary, was that the appellant was on 6 April, 1980 at about 1.30 a.m. at a police check point near Benin City found in possession of a peugeot 504 car with registration No. OYB 2118 A. He drove it from Lagos direction. After some initial questioning by the police, he was ordered to come out of the vehicle and thereafter was arrested. On being questioned further as to how he came by the car in which some women wears, passport photograph of a woman and a bunch of keys were found, he said those items belonged to his boss and that she permitted him to drive her car to Benin to visit his sick father. The police were not convinced; so they took him into custody. It later turned out that the vehicle had been snatched at gun point on 5 April, 1980 between 8.30p.m. and 8.45p.m. from the owner, Alhaji Yekini Abolade Afolabi, who testified as p.w4, on his way to attend a marriage party at Green Spring Hotel, Ibadan in the company of one Mrs. Yetunde Adegbola, P.W.5. The appellant was found guilty of armed robbery by Olowofoyeku, J, sitting at the High Court, Ibadan on 4 November, 1980 and sentenced to death. His appeal against the conviction was dismissed by the Court of Appeal, lbadan Division, on 28 June, 2001. He has further appealed to this court upon two issues, namely:

“1. Whether or not the weight and quality of evidence adduced at the trial (court) and upheld by the lower court can sustain a sentence of death passed on the appellant.

2. Whether or not the lower court was right in evaluating the evidence obtained in Benin City which was outside the locus criminis at Ibadan as part of the direct evidence establishing the appellant’s guilt.”

The two eye witnesses, p.w.4 and p.w.5, gave their account of how the armed robbery took place. They both testified to the effect that on the night in question (about 8.30 to 8.45p.m) on their way to Green Spring Hotel, Ibadan in the car (No.OYB 2118 A) driven by p.w.4, as soon as they turned from the express way into an untarred road, they ran into a barricade created with a taxi cab No. OY 6898 A across the said road. They had to stop and while the headlight of their car was on, they saw three men alight from the taxi cab. Two of them demanded for the cab at gunpoint and the p.w.4 handed over the ignition key without hesitation. In his evidence, p.w.4 said he observed all three men well: two were tall and the third short; one of the two tall men wore a beard and that was the appellant. They all drove away his car, abandoning the taxi cab. He said, he took the ignition key of the taxi cab when he observed it was not removed by the armed robbers and lodged a report at Iyaganku Police Station. The police took possession of the taxi cab. Upon a public announcement of the incident on the television, the driver of the taxi cab (Basiru Popoola, p.w.6) who had earlier made a report at Agodi Police Station that he had been dispossessed of his taxi cab, showed up at the Iyaganku Police Station. His taxi cab was later returned to him.

The appellant has argued on issue 1 that there were discrepancies between the evidence of p.w.4 and p.w.5 which weakened the case of the prosecution. These discrepancies were set out in the appellant’s brief of argument wherein regard to the robbery incident, p.w.4 was recorded to have said – “Two of them (the three men) came to my side of the car whilst the third went to Mrs. Adegbola’s side. I switched off the ignition and came out of the car with the key.”

But p.w.5 narrating the same incident said- “The three men all went to Afolabi’s side of the car.” As to how money was demanded, p.wA said- “One of them pointed a shot gun at me and made a demand for the ignition key. He further demanded to know how much money I had on me. I said I had no money on me but informed him quickly that there was some money in the lady’s hand bag on the back seat of my car. Two of them were tall and the third person was short. One of the two tall men was wearing a beard….

The accused was one of those three persons and he was one of the two tall ones. He was the one wearing beard.”

But P.W.5 on the same event said – “The short one of them asked for what we had on us. Mr. Afolabi said he had nothing on him. I then said I had my bag at the back of the car.”

While P.W.5 said all three men went to p.w.4’s side of the car, p.w.4 himself said only two came to his side and that the third person went to PW.5’s side. In view of the discrepancies, learned counsel for the appellant has raised the question as to who actually, made the demand for the ignition key and money among the three men. His submission is that this would be a matter of mere speculation which the court should not engage in to choose which of the two witnesses to believe, citing Arehia v. The State (1982) 4 SC 78; Ahmed v. The State (1999) 7 NWLR (Pt.612) 641 at 672.

There is no doubt that the contradictions pointed out do exist in the evidence of p.w.4 and p.w.5. But in considering a case where contradictions have been recorded in the evidence of witnesses, it is important always to assess the materiality of those contradictions to the case presented. It is well established that contradictions which do not affect the substance of the issue to be decided are irrelevant. The contradictions must be shown to amount to a substantial disparagement of the witness or witnesses concerned, making it unsafe to rely on such witness or witnesses: see Enahoro v. The State (1965) 5 SC 119; (1965) NSCC (vol.4) 98 at 113. In the present case, the issue is not who demanded money or the ignition key. The simple issue is whether the car in question was snatched from the p.w.4 by persons armed and whether the appellant was one of those persons. In order to establish whether the appellant was one of them, it is not necessary to show in the circumstances that he demanded for money or the ignition key. It is enough if the evidence is that he was present at the scene and was armed, or in the company of armed persons. The further contention of learned counsel for the appellant is that the encounter of p.w.4 with the armed robbers was sudden and that from his evidence he said he panicked when he saw them. Learned counsel therefore invites this court to hold that p.w.4 could not claim he observed the armed robbers well, particularly, as submitted in the brief of argument: “It has become part of our history of tragedies in this country that robbery victims who risk prying into the faces of the robbers are usually instantly shot fatally to prevent identification.” In my view, this argument is one that might have been canvassed at the trial court in order to, or if it will, assist the court make up its mind as to who and what to believe. The learned trial Judge rejected the story of the appellant as to how he came by the car of PW.4. On the other hand he said:

“I accept the testimony of the 4th and 5th prosecution witnesses as regards the manner by which the accused and two others robbed 4th p.w. of his peugeot 504 saloon car No. OYE 2118 A when it contained among other things the amount of N600.00 belonging to the 5th PW. I also believe and accept the evidence of the 4th and 5th prosecution witnesses that at the time of the said robbery the accused was armed with a fire arm.”

When a trial court has performed its primary duty of assessing and evaluating the evidence before it and has made findings of fact which the evidence justifies, an appeal court is not entitled to make contrary findings, particularly when such findings depend largely on the credibility accorded to the witnesses by the trial court. It is normally within the province of the trial court, which has the advantage of hearing and watching witnesses testify, to assess their credibility: see Nasamu v. The State (1979) 6-9 SC 153 at 159; Onafowokan v. The State (1986) 2 NWLR (Pt.23) 496 at 497; Sugh v. The State (1988) 2 NWLR (Pt.77) 475. In this particular case, the evidence of the appellant that he stole the car when he found it parked and unoccupied and drove it away, even when a man and a woman later ran after him, was rejected by the learned trial judge. The learned trial Judge also considered that that story was in conflict with the story he earlier told the police that the owner of the car was his boss and that she allowed him to drive it to Benin to see his sick father. The evidence that the car was snatched from P.W.4 was not difficult for the learned trial Judge to accept as the appellant himself made his presence at the scene of crime a fact not in dispute. What the trial Judge had to decide was whether the appellant was armed and whether he acted alone. He decided, quite rightly in my view, that he was armed and in company with two others: see Atanda v. The State (1983) 6 SC 1 at 3-4. The evidence of p.w.6, Basiru Popoola, was also what the learned trial Judge could not overlook. He said:

“…I have the evidence of 6th p.w. Bashiru Popoola who testified that he was robbed of his taxi cab a day before it was used for the robbery of the 4th p.w’s car and that the police had since returned his taxi cab to him.